NEC ECC: Contract Data & SSCC

I have a scenario (Option B) where by contract data part 2 as filled out by the Main Contractor and has only allowed a fee % for design only. There is 0% for direct fee. The SSCC has also been left completely blank. The Contract has been signed and works have begun on site.

We now have a situation where there is a CE, The Contractor is now trying to impose their own rates for people costs, albeit the SSCC is blank and they’re also trying to add 20% direct fee , although the direct fee in contract data part 2 is 0%.

How do you deal with CE’s if there is no costs for People, Equipment, Plant and Material, etc in the contract documents as part of the SSCC, surely the simplest way forward would have been to have a full comprehensive list at tender stage, completed by the Contractor and then evaluated as part of the tender process ?

Subsequently, would I be entitled to say they’re not entailed to claim the 20% or their own rates as it was left blank and recommend using the BoQ rates, albeit a disadvantage to the Contractor I suppose

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In principle, if something is expressly stated then you apply this information (direct fee %age). If left blank then the matter is essentially open to agreement for a ‘fair and reasonable’ assessment. Building up the rates from ‘1st principles’ would be more appropriate than the BoQ rates, considering the nature of compensation events.

I am pretty sure Rob Horne will add to this answer from a legal perspective but I have a wider question here which is too late for this scenario but might avoid future such scenarios:

  1. why would a Contractor leave such data blank,
  2. why would the Employer not question why it was left blank, and
  3. why would both Parties sign up to a contract with this data missing.

If it was deliberate on the part of the Contractor then the Employer should have questioned it so both Parties are clear on what it does and doesn’t mean.

I agree with Andrew here, if the rate is specified at 0% then that is what they get. Plenty of case law on that point regarding liquidated damages and I think the principle carries over. If no rates have been filled in then you are going to have to use some industry norms to get at cost, CESMM or similar is a good starting point.

Completely agree with Glenn that this is an unnecessary problem.